[2025] UKUT 157 (LC)

Inappropriate use of the FTT’s expertise

This point arises only from the FTT’s refusal of permission to appeal; there was no mention of the FTT’s expertise in the decision of 3 July 2024. In its refusal of permission to appeal the FTT said:

“The tribunal’s decision contains its reasons, in respect of each of the matters listed above, as to why it, as an expert tribunal, disagreed with the expert, and why it found that these matters were Relevant Defects and why they should be included in a Remediation Order.”

As we said above, the decision of 3 July 2024 does not give the FTT’s reasons why the FTT disagreed with all the evidence before it. The reference to its expertise does not help matters. Certainly the FTT is a tribunal whose judges and members have considerable expertise in property law and in a number of other disciplines. The non-legal member of this panel is a Registered Building Inspector, a Fellow of the Royal Institution of Chartered Surveyors, and a Member of the Institute of Fire Engineers. But expertise is not evidence, and the possession of expert knowledge does not enable the FTT to ignore evidence without giving reasons for doing so.

In Dugdale v Kraft Foods Limited [1976] 1 WLR 1288 Phillips J sat as a judge in the Employment Appeal Tribunal, and his comments are equally relevant to other tribunals:

“The members of industrial tribunals are appointed because of their special knowledge and experience, and we have no doubt that they are entitled to draw upon it in playing their part in assisting the tribunal as a whole to reach a decision. The main use which they will make of this knowledge and experience is for the purpose of explaining and understanding the evidence which they hear.Certainly, they are entitled to use their knowledge and experience to fill gaps in the evidence about matters which will be obvious to them but which might be obscure to a layman. More difficult is the case where evidence is given which is contrary to their knowledge and experience. If such an occasion arises, we think that they ought to draw to the attention of the witnesses the experience which seems to them to suggest that the evidence given is wrong, and ought not to prefer their own knowledge or experience without giving the witnesses an opportunity to deal with it. Provided that this opportunity is given there seems to us to be no reason why they should not draw on their own knowledge and experience in this way also. But it is highly desirable that in any case where particular use is made by an industrial tribunal of the knowledge or experience of one or more of their members in reaching their decision this fact should be stated, and that particulars of the matter taken into account should be fully disclosed.”

The emphasis there is ours, and that is what the FTT did not do. The FTT in its decision did not explain why its expertise led it to draw conclusions contrary to the evidence; it did not, for example, set out professional guidance which pointed to contrary conclusions, nor to practical examples of buildings of which the judge or member had knowledge, nor to previous cases in the FTT nor to authoritative decisions that led them to doubt the contents of the MAF report or the BEFS report. There is no indication that they did so at the hearing and therefore whatever it was that influenced them the witnesses had no opportunity to deal with it. We really have no idea why the panel’s expertise led it to contrary conclusions; nor have the parties. Insofar as the FTT’s decision was reached in reliance, in some undisclosed way, on its own expertise it was unfair and for this additional reason must be set aside.